Gwitchyaa Zhee Corporation et al v. Alexander et al

Filing 93

ORDER denying 61 Motion to Amend/Correct. Signed by Judge H. Russel Holland on 1/3/19. (JLH, COURT STAFF)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

GWITCHYAA ZHEE CORPORATION and
GWICHYAA ZHEE GWICH’IN TRIBAL
GOVERNMENT,

)
)
)
)
Plaintiffs, )
)
vs.
)
)
CLARENCE ALEXANDER and DACHO
)
ALEXANDER,
)
)
Defendants/Third-Party Plaintiffs, )
)
vs.
)
)
DAVID BERNHARDT, Acting Secretary
)
of Interior, in his official capacity,
)
)
Third-Party Defendant.
)
_______________________________________)

No. 4:18-cv-0016-HRH

ORDER
Defendants/Third-Party Plaintiffs’ Motion to Amend
Defendants/third-party plaintiffs Clarence and Demetrie Alexander move to amend their
answer, counterclaim, and third-party complaint.1 This motion is unopposed by plaintiffs

1

Docket No. 61.
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Gwichyaa Zhee Gwich’in Tribal Government and Gwitchyaa Zhee Corporation,2 presumably
because the Alexanders are in fact only seeking leave to amend their third-party complaint.
The Alexanders’ motion to amend is opposed by third-party defendant David Bernhardt, Acting
Secretary of the Interior.3 Oral argument was not requested and is not deemed necessary.
Concurrent with this order, the court is entering an order granting plaintiffs’ motion to
amend their complaint. The Alexanders have stated that they will file another motion to amend
their third-party complaint if the court grants plaintiffs’ motion to amend. While it struck the
court that it might be more efficient to summarily deny the instant motion, because the
Alexanders’ proposed third-party amended complaint is poorly drafted, the court offers the
following in the hope of narrowing the problems with any future motion by the Alexanders to
amend their third-party complaint.
Background
This case currently involves a dispute over a parcel of land known as Tract 19A which
was part of an ANCSA conveyance of land from the United States to plaintiff GZ Corporation.
Plaintiffs allege that in 2008, in order to comply with their obligations under § 14(c)(1) of
ANCSA, they submitted a “Map of Boundaries” to the Bureau of Land Management (BLM)
“that identified . . . 14(c)(1) Claims . . . encompassing Fort Yukon and its nearby surround-

2

Docket No. 66.

3

Docket No. 70.
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ings. . . .”4 Plaintiffs allege that the Fort Yukon Map of Boundaries created Tracts 19 and
19A.5 Plaintiffs allege that survey drawings were done after the Fort Yukon Map of
Boundaries was submitted to the BLM but that the drawings for Tracts 19 and 19A were
originally incorrect because defendants “convinced the surveyor to include more acreage in
their § 14(c)(1) Claim than identified on the Fort Yukon Map of Boundaries.”6 Plaintiffs allege
that the survey drawings were corrected in 2014 “to provide the appropriate boundary for
Tracts 19 and 19A.”7 Plaintiffs allege that after they received the final survey drawings, “GZ
Corporation began to execute deeds to provide formal documentation of the § 14(c)(1)
Claims.”8 Plaintiffs allege that they quitclaimed Tract 19 to Clarence Alexander in 2016 but
that they retain title to Tract 19A.9
The Alexanders, however, contend that the boundaries on the Fort Yukon Map of
Boundaries are incorrect and that Clarence Alexander’s § 14(c)(1) claim includes some or all
of Tract 19A.10 The Alexanders also contend that there are issues as to whether plaintiffs

4

Complaint at 3, ¶ 9, Attachment A, Notice of Removal, Docket No. 1.

5

Id. at 3, ¶ 10.

6

Id. at 3-4, ¶ 12.

7

Id. at 4, ¶ 13.

8

Id. at 4, ¶ 14.

9

Id. at 4, ¶¶ 13, 15.

10

Affidavit of Demetrie (Dacho) Alexander at 2, ¶¶ 8-12, appended to Defendants’
Opposition to Plaintiffs’ Motion to Remand, Docket No. 14.
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complied with the regulatory requirements for § 14(c)(1) claims. In addition, the Alexanders
contend that they have obtained documents via FOIA requests that show that the acreage of
Tract 19 was reduced sometime between 2011 and 2014, that the BLM permitted GZ
Corporation to “replat” Tract 19 in 2013-2014, and that this replatting resulted in the reduction
of Tract 19, the relocation of Tract 9,11 and the creation of Tract 19A.
Plaintiffs have brought an ejectment claim against the Alexanders; and the Alexanders
have asserted four counterclaims against plaintiffs. The Alexanders have also filed a thirdparty complaint against the Secretary. The third-party complaint asserts an APA claim against
the Secretary. The Alexanders seek review of the 2008 decision by the BLM to accept GZ
Corporation’s Fort Yukon Map of Boundaries.12 The Alexanders also may be attempting to
assert a separate due process claim.13
Pursuant to Rule 15(a)(2), Federal Rules of Civil Procedure, the Alexanders now move
to amend their third-party complaint. The Alexanders seek to add third-party defendants, add
claims, and amend their existing claims asserted against the Secretary. Specifically, the
Alexanders seek to add as defendants the Department of Interior, the BLM, and the BLM’s
Chief Cadastral Surveyor for Alaska. The proposed amended third-party complaint, while far
from a model of clarity, appears to assert four separate causes of action. First, the Alexanders

11

Tract 9 is a tract that GZ Corporation allegedly intends to convey to the City of Fort
Yukon once the issues in this lawsuit are resolved.
12

Defendants’ . . . Third-Party Complaint at 29-31, ¶¶ 5-15, Docket No. 24.

13

Id. at 31-32, ¶¶ 16-18.
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propose to assert an APA claim seeking review of the 2008 acceptance of GZ Corporation’s
Fort Yukon Map of Boundaries and the 2014 approval of GZ Corporation’s plan of survey.14
Second, the Alexanders propose to assert an APA claim based on allegations that the thirdparty defendants failed to give the Alexanders adequate notice before accepting the Map of
Boundaries in 2008 and approving the plan of survey in 2014.15 Third, the Alexanders propose
to assert claims that 43 U.S.C. § 1624, Part 2650, and 43 U.S.C. § 1632(b) are unconstitutional
as applied to them.16 Fourth, the Alexanders propose to assert an APA claim based on
allegations that the third-party defendants have failed to act on a request for relief that the
Alexanders submitted on August 23, 2018.17
Discussion
“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so
requires.’” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir.
2006) (quoting Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999)). “But a district court need
not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought
in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” Id. The Secretary only
argues that amendment would be futile. “Futility of amendment can, by itself, justify the denial
14

Proposed . . . First Amended Third-Party Complaint at 42-43, ¶¶ 58-60, attached to
Defendants/Third-Party Plaintiffs’ Motion to File First Amended . . . Third-Party Complaint,
Docket No. 61.
15

Id. at 45-46, ¶ 70.

16

Id. at 53-54, ¶ 103.

17

Id. at 57-58, ¶¶ 117-127.
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of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). “The
test for futility ‘is identical to the one used when considering the sufficiency of a pleading
challenged under Rule 12(b)(6).’” Fresno Unified School Dist. v. K.U. ex rel. A.D.U., 980 F.
Supp. 2d 1160, 1179 (E.D. Cal. 2013) (quoting Miller v. Rykoff–Sexton, Inc., 845 F.2d 209,
214 (9th Cir. 1988)). “‘[T]o survive a motion to dismiss, a complaint must contain sufficient
factual matter to state a facially plausible claim to relief.’” Id. (quoting Shroyer v. New
Cingular Wireless Serv., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)). Futility may also
“include[] the inevitability of a claim’s defeat on summary judgment.’” Calif. ex rel. Calif.
Dep’t of Toxic Substances Control v. Neville Chemical Co., 358 F.3d 661, 673–74 (9th Cir.
2004) (quoting Johnson v. Am. Airlines, Inc., 834 F.2d 721, 724 (9th Cir. 1987)).
The Secretary first argues that it would be futile to allow the Alexanders to amend as
to their proposed APA claim based on allegations that the BLM’s acceptance of the 2008 Map
of Boundaries and approval of the 2014 plan of survey were arbitrary and capricious. The
Secretary argues that amendment as to this claim would be futile because ANCSA gave the
Secretary very limited duties with regards to the conveyance of lands. The Secretary contends
that the Alexanders want him to determine that they are entitled to Tract 19A, but he argues that
he has no duty or authority to determine entitlement to any Section 14(c) reconveyances.
“ANCSA extinguished all aboriginal title and claims of aboriginal title to lands in
Alaska in exchange for the distribution of $962,500,000 and over forty million acres of land
to Alaska Natives.” Chickaloon-Moose Creek Native Ass’n, Inc. v. Norton, 360 F.3d 972, 974
(9th Cir. 2004). “ANCSA did not convey lands directly to village or regional corporations, but
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provided a method for accomplishing transfer.” Id. Pursuant to ANCSA, public lands were
withdrawn and then village and regional native corporations could select the lands to which
they were entitled. After a selection was made by a village corporation, the Secretary was
directed to determine how many acres the corporation was entitled to and then issue “a patent
to the surface estate. . . .” 43 U.S.C. § 1613(a). If, however, the lands had not been surveyed,
the Secretary was to convey lands to Native corporations by an “interim conveyance.” 43
U.S.C. § 1621(j)(i). A patent would be issued once the lands in question had been surveyed.
Id.
Section 14(c)(1) of ANCSA provided that once a village corporation received a patent,
the corporation was to
convey to any Native or non-Native occupant, without consideration, title to the surface estate in the tract occupied as of December 18, 1971 . . . as a primary place of residence, or as a primary
place of business, or as a subsistence campsite, or as headquarters
for reindeer husbandry[.]
43 U.S.C. § 1613(c)(1). Section 14(c) made provision for “such sums as may be necessary for
the purpose of providing technical assistance to Village Corporations established pursuant to
this chapter in order that they may fulfill the reconveyance requirements of this subsection.”
43 U.S.C. § 1613(c). Section 14(c) authorized “[t]he Secretary [to] make funds available as
grants to ANCSA or nonprofit corporations that maintain in-house land planning and
management capabilities.” Id.
The Secretary argues that he has limited authority under Section 14(c) and that he does
not have the authority to make any determinations as to Section 14(c) reconveyances.
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Moreover, the Secretary contends that once a village corporation has received a patent, the
corporation has full legal title to the land and that he no longer has jurisdiction over the land.
See West v. Standard Oil Co., 278 U.S. 200, 211–12 (1929) (“[t]he issue of the patent
terminates the jurisdiction of the Department [of Interior] over the land”).
The Secretary acknowledges that he has a duty to survey ANCSA land selections.
Specifically, 43 U.S.C. § 1612(a) provides:
The Secretary shall survey the areas selected or designated for
conveyance to Village Corporations pursuant to the provisions of
this chapter. He shall monument only exterior boundaries of the
selected or designated areas at angle points and at intervals of
approximately two miles on straight lines. No ground survey or
monumentation will be required along meanderable water
boundaries. He shall survey within the areas selected or designated land occupied as a primary place of residence, as a primary
place of business, and for other purposes, and any other land to be
patented under this chapter.
But, the Secretary argues that nothing in Section 1612(a) creates any duty to determine
entitlement to any Section 14(c) reconveyance.
The Secretary also argues that there are no regulations that create a duty to determine
the entitlement to a Section 14(c) reconveyance. The regulation governing village surveys can
be found at 43 C.F.R. § 2650.5–4. Section 2650.5-4(b) provides that “[s]urveys will be made
within the village corporation selections to delineate those tracts required by law to be
conveyed by the village corporations pursuant to section 14(c). . . .” Section 2650.5-4(c)(1)
provides that
[t]he boundaries of the tracts described in paragraph (b) of this
section shall be posted on the ground and shown on a map which
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has been approved in writing by the affected village corporation
and submitted to the Bureau of Land Management. Conflicts
arising among potential transferees identified in section 14(c) of
the Act, or between the village corporation and such transferees,
will be resolved prior to submission of the map.
The Secretary argues that it is thus clear that village corporations are to resolve any issues as
to Section 14(c) claims prior to submitting a map of boundaries to the BLM. As such, the
Secretary argues that the regulations do not impose any duty or authority upon him to determine
entitlement to 14(c) reconveyances.
The regulations further provide for the development of a plan of survey after a map of
boundaries has been approved:
Lands shown by the records of the Bureau of Land Management
as not having been conveyed to the village corporation will be
excluded by adjustments on the map by the Bureau of Land
Management. No surveys shall begin prior to final written
approval of the map by the village corporation and the Bureau of
Land Management. After such written approval, the map will
constitute a plan of survey. Surveys will then be made in accordance with the plan of survey. No further changes will be made
to accommodate additional section 14(c) transferees, and no
additional survey work desired by the village corporation or
municipality within the area covered by the plan of survey or
immediately adjacent thereto will be performed by the Secretary.
43 C.F.R. § 2650.5-4(c)(2). The Secretary argues that this regulation does not create any duty
on the BLM or him to determine entitlement to Section 14(c) reconveyances.
The Alexanders may have a plausible APA claim based on allegations that the BLM’s
acceptance of the 2008 Map of Boundaries and approval of the 2014 plan of survey were
arbitrary and capricious. The Alexanders are not asking the Secretary to decide their

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entitlement to Section 14(c) land. Rather, they are asking the court to review whether the
BLM’s conduct in connection with GZ Corporation’s handling of Clarence Alexander’s
14(c)(1) claim was arbitrary and capricious. But, the only difference between this proposed
APA claim and the APA claim that the Alexanders pled in their original third-party complaint
is that the proposed claim is asserted against the Secretary as well as the Department of Interior,
the BLM, and the BLM’s Chief Cadastral Surveyor. Adding these additional defendants is
unnecessary. Thus, the Alexanders’ motion to amend their third-party complaint to add
additional defendants is denied as is their motion to amend their APA claim seeking review of
the BLM’s acceptance of the 2008 Map of Boundaries and approval of the 2014 plan of survey.
The Secretary next argues that amendment of the Alexanders’ APA claims based on
allegations that they were provided insufficient notice would be futile. First, the Secretary
contends that the Alexanders are alleging that he had a duty to promulgate regulations that
would have required that actual notice be given to 14(c)(1) applicants. As to that contention,
while 43 U.S.C. § 1624 authorizes the Secretary “to issue and publish in the Federal Register,
pursuant to subchapter II of chapter 5 of Title 5, such regulations as may be necessary to carry
out the purposes of” ANCSA, Section 1624 “does not require the Secretary to publish
regulations. . . . It merely ‘authorizes’ him to publish” regulations. Aleknagik Natives, Ltd.
v. United States, 635 F. Supp. 1477, 1496 (D. Alaska 1985). The Secretary had no obligation
to promulgate regulations concerning notice to 14(c)(1) applicants. Thus, the Alexanders’
motion to amend their third-party complaint to add an APA claim based on allegations that the

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Secretary had a duty to promulgate regulations concerning the provision of notice to 14(c)(1)
applicants is denied as such amendment would be futile.
The Alexanders also appear to be proposing to assert an APA claim based on allegations
that the third-party defendants had a duty to provide actual notice but either failed to provide
any notice or provided insufficient notice. The Secretary disagrees that he had any duty to
provide notice that a map of boundaries had been submitted or that a plan of survey had been
approved. The Secretary contends that the Alexanders have not alleged that any statute or
regulation required that such notice be provided nor, according to the Secretary, could they
make such an allegation because there is no such statute or regulation. The Secretary points
out that the BLM’s internal policies provided that
[t]he BLM will notify village residents of the acceptance of the
Map [of Boundaries] and the commencement of the period for
challenging the corporation’s decisions by publishing a Public
Notice in local and statewide newspapers and requesting that the
local Postmaster post a Notice in the local Post Office. The BLM
will also inform the Village Corporation of the acceptance in
writing and circulate such notifications through ANCSA 14(c)
support agencies.[18]
However, the Secretary argues that this notice was voluntarily given and not required by statute
or regulation.19

18

Amended Policy Statement for Preparation and Processing of the Map of Boundaries
under ANCSA 14(c), Exhibit 3 at 6, Third-Party Defendant’s Response in Opposition [etc.],
Docket No. 70.
19

There does not appear to be any factual dispute that the BLM gave the notice
contemplated in this internal policy.
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The Secretary is correct that there is no statute or regulation that required him or the
BLM to provide actual notice to 14(c)(1) applicants that a map of boundaries had been
submitted or that the BLM had approved a plan of survey. The Alexanders’ motion to amend
their third-party complaint to add an APA claim based on allegations that third-party
defendants failed to provide notice or provided insufficient notice is denied as such amendment
would be futile.
The Alexanders may also be attempting to assert a non-APA due process claim. If so,
it is possible that the Alexanders might have a plausible Bivens due process claim, but that is
not what they have alleged in their proposed amended third-party complaint.
The Secretary next argues that the proposed amendment to add as applied constitutional
challenges to 43 U.S.C. § 1624,20 43 U.S.C. § 1632(b),21 and 43 C.F.R. Part 265022 would be
futile because such claims would be barred by the statute of limitations. The Secretary argues

20

Section 1624 provides that “[t]he Secretary is authorized to issue and publish in the
Federal Register, pursuant to subchapter II of chapter 5 of Title 5, such regulations as may
be necessary to carry out the purposes of” ANCSA.
21

Section 1632(b) provides that “[d]ecisions made by a Village Corporation to
reconvey land under section 14(c) of the Alaska Native Claims Settlement Act . . . shall not
be subject to judicial review unless such action is initiated before a court of competent
jurisdiction within one year after the date of the filing of the map of boundaries as provided
for in regulations promulgated by the Secretary.”
22

Part 2650 “provide[s] procedures for orderly and timely implementation of those
provisions of the Alaska Native Claims Settlement Act of December 18, 1971 . . . which
pertain to selections of lands and interests in lands in satisfaction of the land selections
conferred by said Act upon Alaska Natives and Alaska Native corporations.” 43 C.F.R. §
2650.0-1.
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that the proposed constitutional claims would be untimely because they are not actually as
applied claims, but rather are facial challenges. The Secretary points out that the Alexanders
propose to allege that 43 U.S.C. § 1632(b) is “void for vagueness[,]”23 and that Part 2650 and
43 U.S.C. § 1632(b) are “unduly vague[.]”24 The Secretary also points out the Alexanders
propose to allege that 43 U.S.C. § 1632(b) “fails to provide all persons of ordinary intelligence,
what is required of him/her/them to protect his/her/their constitutionally protected property
rights”, “is unduly vague” regarding how and what procedures village corporations are to apply
in implementing their obligations as to § 14(c)(1) applicants, that the definitions in the statute
and regulations are inadequate because they do not define certain words and phrases, and that
43 U.S.C. § 1632(b) and Part 2650 are unconstitutional because they do not require notice or
hearings for 14(c)(1) applicants.25 The Secretary contends that these allegations are all facial
challenges, not as applied challenges. The Secretary contends that facial challenges to ANCSA
would be subject to the one-year statute of limitations found in 43 U.S.C. § 1609, which has
long since expired. And, the Secretary contends that facial challenges to Part 2650 would be
subject to the two-year statute of limitations found in 43 U.S.C. § 1632(a),26 which has long
23

Proposed . . . First Amended Third-Party Complaint at 48, ¶ 82, attached to
Defendants/Third-Party Plaintiffs’ Motion to File . . . First Amended Third-Party Complaint,
Docket No. 61.
24

Id. at 48, ¶ 83.

25

Id. at 48, ¶¶ 82-83; 52, ¶¶ 97, 99.

26

Section 1632(a) provides that “a decision of the Secretary under . . . the Alaska
Native Claims Settlement Act . . . shall not be subject to judicial review unless such action
(continued...)
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since expired. Even if the more generous statute in 28 U.S.C. § 2401(a), which is the general
six-year statute of limitations for actions against the United States, applied, the Secretary argues
that the Alexanders’ proposed constitutional claims would be barred because more than six
years has passed since these statutes and regulations were enacted.
It may be possible for the Alexanders to assert timely as applied constitutional claims.
But that is not what they have alleged in their proposed third-amended complaint. The
proposed constitutional claims are facial challenges, not as applied challenges. Thus, these
proposed constitutional claims would be barred by the statute of limitations, and amending the
third-party complaint to add these claims would be futile.
Finally, the Secretary argues that the Alexanders’ amendment to add a claim under 5
U.S.C. § 706(1) to compel agency action unlawfully withheld would be futile. This claim is
based on a letter that the Alexanders sent to the Department of Interior and the Secretary in
August 2018.27 In the letter, the Alexanders requested that the Secretary require GZ
Corporation to submit an amended Map of Boundaries that would in essence recognize
Clarence Alexander’s claim to Tract 19A.28 The Secretary argues that there are at least two
problems with this proposed claim.

26

(...continued)
is initiated before a court of competent jurisdiction within two years after the day the
Secretary’s decision becomes final. . . .”
27

Exhibit A, Defendants/Third-Party Plaintiffs’ Motion to File First Amended Answer
[etc.], Docket No. 61.
28

Id. at 5.
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First, “the only agency action that can be compelled under the APA is action legally
required.” Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 63 (2004). As argued
above, the Secretary contends that he has no obligation or authority to make determinations as
to 14(c) reconveyances, which is what the Alexanders are asking him to do. Second, the
Secretary argues that this claim would not be ripe yet as there has been no withheld or unduly
delayed action. The Alexanders submitted their request to the Secretary on August 28, 2018.
Any delay at this point in responding to the request would not be undue.
The court agrees with the Secretary that amending the third-party complaint to add this
proposed claim would be futile at this point.
Conclusion
Based on the foregoing, the Alexanders’ motion to amend their third-party complaint
is denied with leave to renew after plaintiffs have filed their amended complaint.29
DATED at Anchorage, Alaska, this 3rd day of January, 2019.
/s/ H. Russel Holland
United States District Judge

29

The Alexanders may not simply amend their third-party complaint when they file an
answer to plaintiffs’ amended complaint. “Rule 14(a) expressly permits adding third party
defendants to an action within fourteen days of filing the original answer; after that deadline,
parties must seek leave of court.” Clear-View Technologies, Inc. v. Rasnick, Case No.
13–cv–02744–BLF, 2015 WL 1307112, at *4 (N.D. Cal. March 23, 2015).
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